Durham Police mangle traffic stop

Jeffrey Castillo had been sitting inside a Durham police cruiser for half an hour, and he seemed nervous. He twiddled his thumbs and bit his nails. Last fall, a patrol officer had pulled over the 21-year-old New Yorker for speeding on Interstate 85. Castillo's demeanor roused the suspicions of the DPD patrol officer, who decided to search Castillo's car.

The officer's suspicions were valid. The search uncovered a brick of heroin and a bag of cocaine stashed in a hidden compartment that had been fortified by sheet metal. Castillo was arrested and charged with several crimes, including heroin trafficking.

But last Wednesday after a pre-trial hearing, Durham Judge Allen Baddour cited several problems with DPD's treatment of Castillo. As a result, Baddour suppressed the drug evidence, essentially absolving Castillo and saving him from almost-certain prison time. The reason: The officer waited at least 37 minutes to search Castillo's car, which violated his constitutional rights. After pulling over a motorist for a routine traffic violation, police must hew to the "mission" of the traffic stop; prolonging it more than necessary is unlawful, Baddour declared in his seven-page order.

The Durham District Attorney's Office swiftly filed a notice of appeal.

Castillo essentially threaded a legal needle. He was arrested just five days before the DPD's written-consent requirements went into effect. And then last Tuesday—the very day before Baddour issued his order—the U.S. Supreme Court published an opinion that greatly influenced the judge's analysis. In Rodriguez vs. U.S., a Nebraska patrol officer took eight minutes to conduct a dog-sniff test after issuing a citation to a motorist. Although the search turned up methamphetamine, the eight-minute delay was unjustified after an ordinary traffic stop, the Supreme Court justices ruled.

In Durham, Baddour's order is likely the first in the country to test the new precedent, which substantially limits officers' search-and-seizure authority. Baddour ruled that the DPD officer "was not reasonably diligent in determining the facts (driving history, outstanding warrants, etc) necessary to determine what, if anything, to charge defendant with."

“The idea of keeping someone on the side of the road for more than an hour before an arrest is made is unacceptable,”

—Chris Brook, legal director for the ACLU of North Carolina

Roy Green, a veteran DPD drug interdiction officer, patrols the highways, looking for violations related to controlled substances, weapons or human trafficking. Green had pulled Castillo over for driving 72 mph in a 65 mph zone near the Durham-Orange County border.

When Green approached Castillo's car, several cues made him suspicious. Castillo's hands were shaking. The car had New York tags, and there was a single key in the ignition. Asked where he was going, Castillo did not answer, and he dawdled in his other responses. His behavior, Green testified last week, was "very strange."

Green frisked Castillo, and then sat him down in the front seat of his cruiser. Here is where problems arose.

For 37 minutes, Green alternated between conducting a background check and making small talk with the suspect; their friendly discussion was captured by Green's in-car camera and audio recorder. Green asked Castillo if the term "Hispanic" was offensive to him, casually noted that he'd never visited New York, and commented about the prevalence of deer on North state highways.

"Throughout the whole stop there was less than three minutes of questions related to traffic," Castillo's lawyer, Kerstin Sutton, argued in court last week.

During the questioning, Green noticed the faint odor of "possibly" marijuana coming from Castillo's clothes, the officer testified. When Green inquired about the smell, Castillo responded that he'd smoked pot three days earlier, and that he'd been around friends who smoked it.

Seventeen minutes after pulling Castillo over, Green finally issuing him a warning. But the officer never told Castillo he was free to leave, and he never read him his Miranda rights. Instead, Green continued his query, asking Castillo if there was marijuana in his car. Castillo said no. Then, without being prompted, Castillo interjected, "You can search if you want to search."

Green interpreted that statement as a waiver of consent. He and backup officers entered Castillo's car and began prying apart the console. They discovered a layer of vinyl plastic sealed with glue and screws to a piece of sheet metal. Underneath, they found the drugs. Sixty-nine minutes after he was pulled over, Castillo was arrested.

Baddour ultimately ruled that Green's casual small talk was not reasonably designed to assist in the traffic investigation. That determination, paired with last week's Supreme Court decision, pleased civil liberties advocates. "The idea of keeping someone on the side of the road for more than an hour before an arrest is made is unacceptable," said Chris Brook, the legal director for the ACLU of North Carolina.

Baddour also ruled that Castillo's statement—"You can search if you want to search"—was vague, rendering Green's search unlawful.

That line of reasoning lends credence to a new Durham city law requiring patrol officers to obtain a motorist's written consent before a warrantless search of his or her vehicle. The law was the result of a lobbying campaign by concerned citizens, including Durham Mayor Bill Bell, who took issue with racial disparities in Durham traffic stops. Had the written-consent policy been in effect at the time Castillo was pulled over, the search of his car might never have occurred.

Castillo was released from jail after posting a reduced bond. The Court of Appeals is expected to rule on the District Attorney's appeal later this year.